Red 2017-28-144-91-95.pdf

If the Engineer does not give such a Notice within this period of 14 days, the Notice of Claim shall be deemed to be a valid Notice. If the other Party disagrees with such deemed valid Notice of Claim the other Party shall give a Notice to the Engineer which shall include details of the disagree...

If the Engineer does not give such a Notice within this period of 14 days, the Notice of Claim shall be deemed to be a valid Notice. If the other Party disagrees with such deemed valid Notice of Claim the other Party shall give a Notice to the Engineer which shall include details of the disagreement. Thereafter, the agreement or determination of the Claim under Sub-Clause 20.2.5 [Agreement or determination of the Claim] shall include a review by the Engineer of such disagreement. If the claiming Party receives a Notice from the Engineer under this Sub-Clause and disagrees with the Engineer or considers there are circumstances which justify late submission of the Notice of Claim, the claiming Party shall include in its fully detailed Claim under Sub-Clause 20.2.4 [Fully detailed claim] details of such disagreement or why such late submission is justified (as the case may be). Contemporary records In this Sub-Clause 20.2, “contemporary records” means records that are prepared or generated at the same time, or immediately after, the event or circumstance giving rise to the Claim. The claiming Party shall keep such contemporary records as may be necessary to substantiate the Claim. Without admitting the Employer’s liability, the Engineer may monitor the Contractor’s contemporary records and/or instruct the Contractor to keep additional contemporary records. The Contractor shall permit the Engineer to inspect all these records during normal working hours (or at other times agreed by the Contractor), and shall if instructed submit copies to the Engineer. Such monitoring, inspection or instruction (if any) by the Engineer shall not imply acceptance of the accuracy or completeness of the Contractor’s contemporary records. 20.2.4 Fully detailed Claim In this Sub-Clause 20.2, “fully detailed Claim” means a submission which includes: (a) (b) (c) (d) Within either: (i) General Conditions © FIDIC 2017 a detailed description of the event or circumstance giving rise to the Claim; a statement of the contractual and/or other legal basis of the Claim; all contemporary records on which the claiming Party relies; and detailed supporting particulars of the amount of additional payment claimed (or amount of reduction of the Contract Price in the case of the Employer as the claiming Party), and/or EOT claimed (in the case of the Contractor) or extension of the DNP claimed (in the case of the Employer). 84 days after the claiming Party became aware, or should have become aware, of the event or circumstance giving rise to the Claim, 97 GENERAL CONDITIONS If the Engineer considers that the claiming Party has failed to give the Notice of Claim within the period of 28 days under Sub-Clause 20.2.1 [Notice of Claim] the Engineer shall, within 14 days after receiving the Notice of Claim, give a Notice to the claiming Party accordingly (with reasons). GUIDANCE 20.2.3 This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org Engineer’s initial response FORMS 20.2.2  the claiming Party shall submit to the Engineer a fully detailed Claim. If within this time limit the claiming Party fails to submit the statement under sub-paragraph (b) above, the Notice of Claim shall be deemed to have lapsed, it shall no longer be considered as a valid Notice, and the Engineer shall, within 14 days after this time limit has expired, give a Notice to the claiming Party accordingly. If the Engineer does not give such a Notice within this period of 14 days, the Notice of Claim shall be deemed to be a valid Notice. If the other Party disagrees with such deemed valid Notice of Claim the other Party shall give a Notice to the Engineer which shall include details of the disagreement. Thereafter, the agreement or determination of the Claim under Sub-Clause 20.2.5 [Agreement or determination of the Claim] shall include a review by the Engineer of such disagreement. If the claiming Party receives a Notice from the Engineer under this Sub-Clause 20.2.4 and if the claiming Party disagrees with such Notice or considers there are circumstances which justify late submission of the statement under sub-paragraph (b) above, the fully detailed claim shall include details of the claiming Party’s disagreement or why such late submission is justified (as the case may be). If the event or circumstance giving rise to the Claim has a continuing effect, Sub-Clause 20.2.6 [Claims of continuing effect] shall apply. This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org FORMS GUIDANCE GENERAL CONDITIONS (ii) or such other period (if any) as may be proposed by the claiming Party and agreed by the Engineer 20.2.5 Agreement or determination of the Claim After receiving a fully detailed Claim either under Sub-Clause 20.2.4 [Fully detailed Claim], or an interim or final fully detailed Claim (as the case may be) under Sub-Clause 20.2.6 [Claims of continuing effect], the Engineer shall proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine: (a) (b) the additional payment (if any) to which the claiming Party is entitled or the reduction of the Contract Price (in the case of the Employer as the claiming Party); and/or the extension (if any) of the Time for Completion (before or after its expiry) under Sub-Clause 8.5 [Extension of Time for Completion] (in the case of the Contractor as the claiming Party), or the extension (if any) of the DNP (before its expiry) under Sub-Clause 11.3 [Extension of Defects Notification Period] (in the case of the Employer as the claiming Party), to which the claiming Party is entitled under the Contract. If the Engineer has given a Notice under Sub-Clause 20.2.2 [Engineer’s initial response] and/or under Sub-Clause 20.2.4 [Fully detailed Claim], the Claim shall nevertheless be agreed or determined in accordance with this Sub-Clause 20.2.5. The agreement or determination of the Claim shall include whether or not the Notice of Claim shall be treated as a valid Notice taking account of the details (if any) included in the fully detailed claim of the claiming Party’s disagreement with such Notice(s) or why late submission is justified (as the case may be). The circumstances which may be taken into account (but shall not be binding) may include: 98 © FIDIC 2017 Conditions of Contract for Construction • If, having received the fully detailed Claim under Sub-Clause 20.2.4 [Fully detailed Claim], or in the case of a Claim under Sub-Clause 20.2.6 [Claims of continuing effect] an interim or final fully detailed Claim (as the case may be), the Engineer requires necessary additional particulars: (i) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (ii) (iii) (iv) 20.2.6 Claims of continuing effect If the event or circumstance giving rise to a Claim under this Sub-Clause 20.2 has a continuing effect: (a) (b) (c) (d) General Conditions © FIDIC 2017 he/she shall promptly give a Notice to the claiming Party, describing the additional particulars and the reasons for requiring them; he/she shall nevertheless give his/her response on the contractual or other legal basis of the Claim, by giving a Notice to the claiming Party, within the time limit for agreement under Sub-Clause 3.7.3 [Time limits]; as soon as practicable after receiving the Notice under sub-paragraph (i) above, the claiming Party shall submit the additional particulars; and the Engineer shall then proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the matters under sub-paragraphs (a) and/or (b) above (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives the additional particulars from the claiming Party shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). the fully detailed Claim submitted under Sub-Clause 20.2.4 [Fully detailed Claim] shall be considered as interim; in respect of this first interim fully detailed Claim, the Engineer shall give his/her response on the contractual or other legal basis of the Claim, by giving a Notice to the claiming Party, within the time limit for agreement under Sub-Clause 3.7.3 [Time limits]; after submitting the first interim fully detailed Claim the claiming Party shall submit further interim fully detailed Claims at monthly intervals, giving the accumulated amount of additional payment claimed (or the reduction of the Contract Price, in the case of the Employer as the claiming Party), and/or extension of time claimed (in the case of the Contractor as the claiming Party) or extension of the DNP (in the case of the Employer as the claiming Party); and the claiming Party shall submit a final fully detailed Claim within 28 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the claiming Party and agreed by the Engineer. This final fully detailed Claim shall give the total amount of additional payment claimed (or the reduction of the Contract Price, in the case of the Employer as the claiming Party), and/or extension of time claimed (in the case of the Contractor as the claiming Party) or extension of the DNP (in the case of the Employer as the claiming Party). 99 GENERAL CONDITIONS GUIDANCE • whether or to what extent the other Party would be prejudiced by acceptance of the late submission; in the case of the time limit under Sub-Clause 20.2.1 [Notice of Claim], any evidence of the other Party’s prior knowledge of the event or circumstance giving rise to the Claim, which the claiming Party may include in its supporting particulars; and/or in the case of the time limit under Sub-Clause 20.2.4 [Fully detailed Claim], any evidence of the other Party’s prior knowledge of the contractual and/or other legal basis of the Claim, which the claiming Party may include in its supporting particulars. FORMS • GENERAL CONDITIONS This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org General requirements After receiving the Notice of Claim, and until the Claim is agreed or determined under Sub-Clause 20.2.5 [Agreement or determination of the Claim], in each Payment Certificate the Engineer shall include such amounts for any Claim as have been reasonably substantiated as due to the claiming Party under the relevant provision of the Contract. The Employer shall only be entitled to claim any payment from the Contractor and/or to extend the DNP, or set off against or make any deduction from any amount due to the Contractor, by complying with this Sub-Clause 20.2. The requirements of this Sub-Clause 20.2 are in addition to those of any other Sub-Clause which may apply to the Claim. If the claiming Party fails to comply with this or any other Sub-Clause in relation to the Claim, any additional payment and/or any EOT (in the case of the Contractor as the claiming Party) or extension of the DNP (in the case of the Employer as the claiming Party), shall take account of the extent (if any) to which the failure has prevented or prejudiced proper investigation of the Claim by the Engineer. FORMS GUIDANCE 20.2.7 21 Disputes and Arbitration 21.1 Constitution of the DAAB Disputes shall be decided by a DAAB in accordance with Sub-Clause 21.4 [Obtaining DAAB’s Decision]. The Parties shall jointly appoint the member(s) of the DAAB within the time stated in the Contract Data (if not stated, 28 days) after the date the Contractor receives the Letter of Acceptance. The DAAB shall comprise, as stated in the Contract Data, either one suitably qualified member (the “sole member”) or three suitably qualified members (the “members”). If the number is not so stated, and the Parties do not agree otherwise, the DAAB shall comprise three members. The sole member or three members (as the case may be) shall be selected from those named in the list in the Contract Data, other than anyone who is unable or unwilling to accept appointment to the DAAB. If the DAAB is to comprise three members, each Party shall select one member for the agreement of the other Party. The Parties shall consult both these members and shall agree the third member, who shall be appointed to act as chairperson. The DAAB shall be deemed to be constituted on the date that the Parties and the sole member or the three members (as the case may be) of the DAAB have all signed a DAAB Agreement. The terms of the remuneration of either the sole member or each of the three members, including the remuneration of any expert whom the DAAB consults, shall be mutually agreed by the Parties when agreeing the terms of the DAAB Agreement. Each Party shall be responsible for paying one-half of this remuneration. If at any time the Parties so agree, they may appoint a suitably qualified person or persons to replace any one or more members of the DAAB. Unless the Parties agree otherwise, a replacement DAAB member shall be appointed if a member declines to act or is unable to act as a result of death, 100 © FIDIC 2017 Conditions of Contract for Construction  Unless otherwise agreed by both Parties, the term of the DAAB (including the appointment of each member) shall expire either: (a) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (b) on the date the discharge shall have become, or deemed to have become, effective under Sub-Clause 14.12 [Discharge]; or 28 days after the DAAB has given its decision on all Disputes, referred to it under Sub-Clause 21.4 [Obtaining DAAB’s Decision] before such discharge has become effective, whichever is later. However, if the Contract is terminated under any Sub-Clause of these Conditions or otherwise, the term of the DAAB (including the appointment of each member) shall expire 28 days after: (i) (ii) the DAAB has given its decision on all Disputes, which were referred to it (under Sub-Clause 21.4 [Obtaining DAAB’s Decision]) within 224 days after the date of termination; or the date that the Parties reach a final agreement on all matters (including payment) in connection with the termination whichever is earlier. 21.2 Failure to Appoint DAAB Member(s) If any of the following conditions apply, namely: (a) (b) (c) (d) General Conditions © FIDIC 2017 if the DAAB is to comprise a sole member, the Parties fail to agree the appointment of this member by the date stated in the first paragraph of Sub-Clause 21.1 [Constitution of the DAAB]; or if the DAAB is to comprise three persons, and if by the date stated in the first paragraph of Sub-Clause 21.1 [Constitution of the DAAB]: (i) either Party fails to select a member (for agreement by the other Party); (ii) either Party fails to agree a member selected by the other Party; and/or (iii) the Parties fail to agree the appointment of the third member (to act as chairperson) of the DAAB; the Parties fail to agree the appointment of a replacement within 42 days after the date on which the sole member or one of the three members declines to act or is unable to act as a result of death, illness, disability, resignation, or termination of appointment; or if, after the Parties have agreed the appointment of the member(s) or replacement, such appointment cannot be effected because one Party refuses or fails to sign a DAAB Agreement with any such member or replacement (as the case may be) within 14 days of the other Party’s request to do so, then the appointing entity or official named in the Contract Data shall, at the request of either or both Parties and after due consultation with both Parties, appoint the member(s) of the DAAB (who, in the case of sub-paragraph (d) 101 GENERAL CONDITIONS The appointment of any member may be terminated by mutual agreement of both Parties, but not by the Employer or the Contractor acting alone. GUIDANCE FORMS illness, disability, resignation or termination of appointment. The replacement member shall be appointed in the same manner as the replaced member was required to have been selected or agreed, as described in this Sub-Clause.